42 Minn. 30 | Minn. | 1889
By Sp. Laws 1889, c. 403, the legislature established a justice’s court in the sixth Ward of the city of St. Paul, and provided for the election of such justice at the next general city election, and every two years thereafter. By the fourth section of the act the mayor of the city was authorized to appoint the first justice, who should hold the office until the next city election, and until his successor should be elected and qualified. The respondent McMartin is occupying the office and performing its duties, under appointment by the mayor, pursuant to the provisions of this act. A civil action, within the jurisdiction of justices of the peace, was commenced against the relator before the respondent as such justice, in which a summons has been issued. The relator asks for a writ of prohibition to restrain and prevent the respondent from proceeding further in the action, on the ground that he is not a justice of the peace, and has no authority to act as such, for the reason that the provision of the act in question, assuming to confer upon the mayor the power to fill the office by appointment, is unconstitutional. This part of the act is entirely separate and distinct from the provisions creating the court or office, and hence, even assuming that the former is invalid, the latter are valid. We have, then, a case where the court or office was legally created, and the illegality, if any, consists in an attempt to fill it by appointment, for the period indicated, in a way not authorized by the constitution. On these facts,
Rule discharged.